Employment & Labor Insider

Happy Mother's Day weekend to all of you who are, or who have, mothers.

(I think that covers everybody.)

I couldn't think of a better way to start this weekend than with a quiz on pregnancy discrimination, lactation accommodation, "family discrimination," and the Family and Medical Leave Act. As always, answers are at the end of each question.

Ready? Here we go!

Question 1: By definition, an employer cannot discriminate based on pregnancy after the baby is born.

A. Correct. "Pregnancy" is obviously limited to the nine months (more or less) of gestation. Discrimination that occurs afterward cannot be based on pregnancy, although it may be unlawful for some other reason.

B. Incorrect. "Pregnancy" also includes the postpartum period. (Roughly six weeks after childbirth, assuming no complications.)

C. Incorrect. Courts have interpreted "pregnancy" to include not only gestation and childbirth (and postpartum period), but also a period of a few months after the baby is born. Moreover, the Equal Employment Opportunity Commission says that discrimination based on lactation is a form of "pregnancy discrimination."

ANSWER: C. Employers, treat those new moms right! For a long time.

Question 2: By definition, an employer cannot discriminate based on pregnancy before the woman actually conceives.

A. Correct. How can an employer discriminate based on pregnancy when the woman isn't even pregnant? This quiz is stupid.

B. Correct. Although the answer to Question 1 was C, all of those protections are tied to actual physiological changes related to gestation, childbirth, the postpartum period, and lactation. There are no physical changes that occur before a women becomes pregnant, so there is no need for legal protection before conception.

C. Incorrect. In the view of the EEOC and many courts, the pregnancy discrimination laws encompass gestation, childbirth, the postpartum period, and lactation, but they also include attempts to conceive (e.g., fertility treatments), and attempts to avoid conception (e.g., use of contraceptives). They also include miscarriages and elective abortions.

D. Incorrect. Women are protected from everything. Guys just can't get a break.

ANSWER: C again!

Question 3: The Nursing Mothers Act, which amended the Fair Labor Standards Act to require employers to provide unpaid "lactation breaks" and related accommodations in certain circumstances, does not apply to FLSA-exempt employees. 

A. True.

B. False.

ANSWER: True. The NMA applies only to non-exempt employees. Of course, employers should provide "lactation accommodation" to exempt employees, too (in addition to being the right thing to do, there could also be a "pregnancy" discrimination issue if they don't), and exempt employees cannot be docked for that time.

Question 4: An employer will be in compliance with the Nursing Mothers Act if it provides non-exempt employees with two 20-minute "lactation breaks" per eight-hour shift.

A. Correct. That is what is required under the law.

B. Correct. Although the NMA does not specify the number of breaks or amount of time that should be provided, two 20-minute breaks in an eight-hour shift would create a "safe harbor" for employers that should shield them from any claims.

C. Incorrect. The NMA requires three 20-minute breaks in an eight-hour shift, not two.

D. Incorrect. The number and duration of breaks is based on the needs of the mother. When the baby is young, the mother may need breaks about every 2 hours. The frequency will decrease as the child gets older. The length of the breaks is not specified in the law, but it should be enough time for the mother to prepare to express milk, to express the milk, and to clean up afterward. That may or may not be 20 minutes. In addition, the employer has to provide a private location (with a lock) that isn't a bathroom, a place for the mother to store her milk, and a flat surface on which she can place a breast pump.

ANSWER: D.

Question 5: A woman who is denied a promotion because she has school-age kids or an elderly parent will not have a valid pregnancy discrimination claim.

A. True

B. False

ANSWER: True. But even though she won't have a valid discrimination claim based on pregnancy, that's not to say she wouldn't have a valid discrimination claim of some other sort. She might be able to claim "regular" sex discrimination if the employer promoted male employees without regard to the ages of their kids or parents. In other words, if the woman can show that the employer declined to select her because of stereotypes about women's caregiving responsibilities and ability to do the job, then that would still be unlawful.

Question 6: For what type of "baby-related leave" do the following provisions of the Family and Medical Leave Act apply: (1) all leave must be taken in one year, (2) reduced schedule/intermittent leave are not available unless the employer consents, and (3) if both spouses are employed by the same employer, they are entitled to only an "aggregated" 12 weeks of leave?

A. Prenatal care, childbirth, the postpartum period, and enjoying the baby

B. Childbirth, the postpartum period, and enjoying the baby

C. Enjoying the baby

D. None of the above

ANSWER: C. Time off for prenatal care, childbirth, and recovery from childbirth would all qualify as "serious health condition" leave under the FMLA. That means the leave can be taken whenever the employee needs it, and it can be taken on an intermittent or reduced schedule basis. If both spouses are employed by the employer, and the husband is "needed to care for" his wife's serious health condition, then the husband and wife would each be entitled to a full 12 weeks of FMLA leave. But time off just to "bond" with the baby is subject to these limitations. My general practice is to let the "bonding" time kick in six weeks postpartum, unless there were complications with the labor and delivery that might have made the "medical recovery" period longer than six weeks.

Question 7: Jack and Jill both work for you. They are not married. Jill becomes pregnant by Jack. Jill has a prenatal appointment and requests FMLA leave for the visit, which you approve. Jack also requests FMLA leave and gives you a medical certification signed by Jill's obstetrician saying that Jack is "needed to care for" Jill on her visit. Is Jack entitled to FMLA leave for this purpose?

A. Yes, because he has presented a valid medical certification from Jill's health care provider.

B. No, because he is not Jill's spouse, parent, or child.

ANSWER: B. Jack would be entitled to FMLA leave for the baby's serious health condition because he is the baby's father. But he is not entitled to FMLA leave for Jill because they don't have a relationship that is covered under the law. (Of course, you can allow Jack to go to the appointment out of the goodness of your heart, but you're not legally required to do it.)

HOW'DJA DO?

6-7 correct: You are one smart mother!

3-5 correct: Pretty good, but you could do so much more if you just applied yourself.

0-2 correct: Well, anyway, your mother loves you.

Happy Mother's Day to you all!